Suspended solicitor Declan O’Callaghan should be struck off the roll of solicitors as a result of professional misconduct, a tribunal has found.
The Solicitors’ Disciplinary Tribunal (SDT) does not have powers to strike off a solicitor itself so it has directed the Law Society to bring its report and recommendations concerning Mr O’Callaghan before the president of the High Court, with whom the final decision rests.
The report contains the opinion of the tribunal concerning the fitness or otherwise of Mr O’Callaghan to be a member of the profession and its opinion that he should be struck off, tribunal chairman Justin McKenna said on Tuesday.
The three-member tribunal gave its decision after hearing submissions on the sanction to be imposed on Mr O’Callaghan on foot of its recent finding that he was guilty of four counts of professional misconduct over his handling of the sale of lands in Co Mayo in 2007. In making its recommendations, the tribunal had regard to other findings of misconduct previously made by it against Mr O’Callaghan, Mr McKenna said.
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The tribunal considered it was not appropriate, in this case, to impose the lesser sanctions of censure or a fine.
Mr O’Callaghan, whose now defunct firm Kilrane O’Callaghan & Co was based in Ballaghderreen, Co Roscommon, has been suspended as a solicitor since 2018 arising from a Law Society investigation into matters at the practice. Concerns raised in an independent solicitor’s report included that he withdrew substantial fees from the estate of a bereaved child.
A suspension was imposed pending a hearing before the tribunal of the society’s application for an inquiry into matters arising from its investigation. That application has yet to be heard.
Last month, the tribunal upheld a separate complaint initiated in 2010 by Nirvana Property Holdings Ltd, a company of businessman Tom Fleming, against Mr O’Callaghan over the 2007 land sale.
Mr Fleming claimed Nirvana was to receive €250,000 for the land at Aughadiffin, Kilkelly, from businessman Fred Preston, since deceased, but, although the land was transferred in April 2007, no money was ever received by Nirvana. Mr O’Callaghan denied that €250,000 was owed to Nirvana and disputed the transaction was for “sale” of the lands.
The tribunal found professional misconduct on four counts of breach of duty in relation to the lands transfer, including Mr O’Callaghan purporting to act for vendor and purchaser in a transaction where there was “a clear conflict of interest”, provided inadequate professional services and breached his duty of care to the company.
The tribunal was also told of the previous disciplinary history concerning Mr O’Callaghan. It heard he was found guilty of misconduct in 1990 related to 26 allegations and the High Court had directed he practise for three years under supervision of a solicitor of not less than 10 years standing.
The second previous matter concerned a 2019 tribunal finding that Mr O’Callaghan was guilty of misconduct in unlawfully retaining client money in his client account due to be paid to another law firm for litigation costs and expenses from the estate of a named client.
Arising from that finding, the tribunal recommended he be censured, pay €10,000 to the Law Society compensation fund and €7,500 as a contribution to the society’s costs. There was no record of the compensation being paid, the tribunal was told.
In sanction submissions on Tuesday, barrister Ruadhán Ó Ciaráin, instructed by Langsch and Cunnane Solicitors LLP, for Nirvana, urged that the matter go to the High Court with a view to having Mr O’Callaghan struck off.
Some of the earlier matters before the tribunal concerning Mr O’Callaghan were “extremely serious”, he said. The findings in 1990 included that Mr O’Callaghan had improperly and knowingly applied client money for his personal benefit and placed a false letter on a client’s file with intention to mislead the society’s investigating accountant, he said.
Given such behaviour, and the vulnerable nature of the clients involved, including Mr Fleming, who left school at 13 and is dyslexic, the tribunal should refer the matter to the High Court, counsel urged, as the danger to lay members of the public “is just too high”.
In submissions for Mr O’Callaghan, barrister Michael Mullooly said his client respected the tribunal’s decision on Nirvana’s complaint but was reserving his rights in that regard. Mr O’Callaghan had co-operated with the tribunal, these matters were hanging over him since 2010 and the tribunal should take into account that “extraordinary” media reporting of them had been “ruinous” in terms of the intense pressure placed on his client.
Misconduct is a very serious matter for the solicitors profession but the four findings made against Mr O’Callaghan were “akin to professional negligence”, counsel submitted. Mr Fleming had settled professional negligence proceedings and received compensation under that, he said.
In relation to the earlier matters before the tribunal, the clients and law firm involved suffered no loss and there was nothing to merit the tribunal referring this matter to the High Court, counsel submitted.
Mr O’Callaghan’s accounts have been frozen since 2018, the society took possession of files from his practice, is still gathering in money due to him and he would pay when matters are resolved with the society, he added.
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